EB-5 Visa: the Best Alternative to H-1B Visas?

Under the Trump administration H-1B visa denial rates for initial employment continue to skyrocket. Due to this increased uncertainty, many foreign nationals looking to live and work in the U.S. may be wondering if the EB-5 visa presents a good alternative immigration option.

The H-1B program gives foreign nationals with high levels of education and skill temporary employment in the U.S. under an employer sponsor, but due to Trump administration policies, these foreign nationals filing for initial employment are seeing their petitions denied at increasing rates.

According to National Foundation For American Policy (NFAP), “20 of the 25 top companies had H-1B denial rates for initial employment at least 10 percentage points higher in FY 2020 (through the second quarter) than in FY 2015. That includes large technology companies such as Cisco and Google.”

In a table created by NFAP, which pulls data from USCIS H-1B Employer Data Hub, the denial rate for H-1B petitions for initial employment in fiscal year 2020 (through the second quarter) was 29%, whereas, the denial rate for fiscal year 2015 (prior to the Trump Administration being in charge) was 6%.

Although, on August 12th, a National Interest Exception to the Presidential Proclamation that suspended H-1B was issued, allowing certain H-1B applicants to be considered, applicants must fall under at least two of five indicators to be considered, according to the U.S. Department of State. The exceptions are primarily to designed to help U.S. employers avoid economic hardship that comes with loosing valuable employees already on H-1B and to allow travel for foreign nationals whose skills meet U.S. economic infrastructure need or to alleviate the affects of Covid-19.

The high denial rate may have many professional foreign nationals (that don’t meet these narrow indicators) looking for strong alternatives to the H-1B Program. One such alternative is the EB-5 Program.

EB-5 Program

The EB-5 Program, which was not affected by President Trump’s recent Presidential Proclamation, allows foreign nationals to obtain green cards in exchange for investing either $900,000 or $1,800,000 (amount depends on the location of the investment), in a job-creating U.S. new commercial enterprise.

Funds for the investment can come from a variety of sources including income, sale of assets, gifts, loans, or inheritance, to name a few. Qualified investors can also decide if they want to make a direct investment and manage the day to day operations of their business themselves, benefit being they may be able to make higher returns on their investment, or they can invest in a regional center project and take on a more passive role such as that of a policy-maker.

Both pathways under the EB-5 Program will allow the principal investor, their spouse and their unmarried children under the age of 21 years to become eligible to also obtain green cards under one petition. With an EB-5 visa, foreign nationals and their families can live, work, travel and study anywhere in the U.S. without the restrictions. While the EB-5 Program does not have age, skill, or education requirements like other visa categories, applicants must still pass thorough vetting, interviews and medical examinations.

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